Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act (MHPAEA)

 
Self-Compliance Tool for the
                 Mental Health Parity and Addiction Equity Act (MHPAEA)

About This Tool .............................................................................................................................. 2
Introduction ..................................................................................................................................... 3
Definitions....................................................................................................................................... 4
SECTION A.                  APPLICABILITY ............................................................................................. 6
SECTION B.                  COVERAGE IN ALL CLASSIFICATIONS ................................................... 8
SECTION C.                  LIFETIME AND ANNUAL LIMITS ............................................................ 13
SECTION D.                  FINANCIAL REQUIREMENTS AND QUANTITATIVE TREATMENT
                            LIMITATIONS ............................................................................................... 14
SECTION E.                  CUMULATIVE FINANCIAL REQUIREMENTS AND TREATMENT
                            LIMITATIONS ............................................................................................... 18
SECTION F.                  NONQUANTITATIVE TREATMENT LIMITATIONS .............................. 19
SECTION G.                  DISCLOSURE REQUIREMENTS ................................................................ 29
SECTION H.                  ESTABLISHING AN INTERNAL MHPAEA COMPLIANCE PLAN ........ 33
APPENDIX I:                 ADDITIONAL ILLUSTRATIONS................................................................ 35
APPENDIX II:                PROVIDER REIMBURSEMENT RATE WARNING SIGNS ..................... 38

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About This Tool

The goal of this self-compliance tool is to help group health plans, plan sponsors, plan
administrators, group and individual market health insurance issuers, state regulators, and other
parties determine whether a group health plan or health insurance issuer complies with the
Mental Health Parity and Addiction Equity Act (MHPAEA) and additional related requirements
under the Employee Retirement Income Security Act of 1974 (ERISA) that apply to group health
plans. The requirements described in this tool generally apply to group health plans, group
health insurance issuers, and individual market health insurance issuers. However, requirements
that do not apply as broadly are so noted.

This tool does not provide legal advice. Rather, it gives the user a basic understanding of
MHPAEA to assist in evaluating compliance with its requirements. For more information on
MHPAEA, or related guidance issued by the Departments of Labor (DOL), Health and Human
Services (HHS), and the Treasury (collectively, the Departments), please visit
https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-and-substance-use-
disorder-parity.

Furthermore, as directed by Section 13001(a) of the 21st Century Cures Act, this publicly
available tool is a compliance program guidance document intended to improve compliance with
MHPAEA. DOL will update the self-compliance tool biennially to provide additional guidance
on MHPAEA’s requirements, as appropriate.

MHPAEA, as a federal law, sets minimum standards for group health plans and issuers with
respect to parity requirements. However, many states have enacted their own laws to advance
parity between mental health and substance use disorder benefits and medical/surgical benefits
by supplementing the requirements of MHPAEA. Insured group health plans and issuers should
consult with their state regulators to understand the full scope of applicable parity requirements.

This tool provides a number of examples that demonstrate how the law applies in certain
situations and how a plan or issuer might or might not comply with the law. Additional
examples are included in the Appendix I. The fact patterns used as examples are intended to
help group health plans and health insurance issuers identify and address important MHPAEA
issues.

Examples of MHPAEA enforcement actions that the DOL has undertaken are included in the
MHPAEA Enforcement Fact Sheets, available at https://www.dol.gov/agencies/ebsa/laws-and-
regulations/laws/mental-health-and-substance-use-disorder-parity. Examples of MHPAEA
enforcement actions that HHS has taken are included in the Department of Health and Human
Services’ MHPAEA Reports at https://www.cms.gov/CCIIO/Resources/Forms-Reports-and-
Other-Resources#mental-health-parity.

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Introduction

MHPAEA, as amended by the Patient Protection and Affordable Care Act (the Affordable Care
Act), generally requires that group health plans and health insurance issuers offering group or
individual health insurance coverage ensure that the financial requirements and treatment
limitations on mental health or substance use disorder (MH/SUD) benefits they provide are no
more restrictive than those on medical or surgical benefits. This is commonly referred to as
providing MH/SUD benefits in parity with medical/surgical benefits.

MHPAEA generally applies to group health plans and group and individual health insurance
issuers that provide coverage for MH/SUD benefits in addition to medical/surgical benefits.
DOL has primary enforcement authority with regard to MHPAEA over private sector
employment-based group health plans, while HHS has primary enforcement authority over non-
federal governmental group health plans, such as those sponsored by state and local government
employers. HHS also has primary enforcement authority for MHPAEA over issuers selling
products in the individual and fully insured group markets in states that have notified HHS’
Centers for Medicare & Medicaid Services that they do not have the authority to enforce or are
not otherwise enforcing MHPAEA. In all other states, generally the state is responsible for
directly enforcing MHPAEA with respect to issuers.

Unless a plan is otherwise exempt, MHPAEA generally applies to both grandfathered and non-
grandfathered group health plans and large group health insurance coverage. Also, the
Affordable Care Act requires all issuers offering coverage in the individual and small group
markets to cover certain essential health benefits (EHB), including MH/SUD benefits. Final
rules issued by HHS implementing EHB requirements specify that MH/SUD benefits must be
consistent with the requirements of the MHPAEA regulations. See 45 CFR 156.115(a)(3).

Under the MHPAEA regulations, if a plan or issuer provides MH/SUD benefits in any
classification described in the MHPAEA final regulation, MH/SUD benefits must be provided in
every classification in which medical/surgical benefits are provided. Under PHS Act section
2713, as added by the Affordable Care Act, non-grandfathered group health plans and group and
individual health insurance coverage are required to cover certain preventive services with no
cost-sharing, which include, among other things, alcohol misuse screening and counseling,
depression screening, and tobacco use screening. However, the MHPAEA regulations do not
require a group health plan or a health insurance issuer that provides MH/SUD benefits only to
the extent required under PHS Act section 2713, to provide additional MH/SUD benefits in any
classification. See 29 CFR 2590.712(e)(3)(ii), 45 CFR 146.136(e)(3)(ii), 26 CFR 54.9812-
1(e)(3)(ii).

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Definitions

Aggregate lifetime dollar limit means a dollar limitation on the total amount of specified benefits
that may be paid under a group health plan or health insurance coverage for any coverage unit.

Annual dollar limit means a dollar limitation on the total amount of specified benefits that may
be paid in a 12-month period under a group health plan or health insurance coverage for any
coverage unit.

Cumulative financial requirements are financial requirements that determine whether or to what
extent benefits are provided based on certain accumulated amounts, and they include deductibles
and out-of-pocket maximums. (However, cumulative financial requirements do not include
aggregate lifetime or annual dollar limits because these two terms are excluded from the meaning
of financial requirements.)

Cumulative quantitative treatment limitations are treatment limitations that determine whether
or to what extent benefits are provided based on certain accumulated amounts, such as annual or
lifetime day or visit limits.

Financial requirements include deductibles, copayments, coinsurance, or out-of-pocket
maximums. Financial requirements do not include aggregate lifetime or annual dollar limits.

Medical/surgical benefits means benefits with respect to items or services for medical conditions
or surgical procedures, as defined under the terms of the plan or health insurance coverage and in
accordance with applicable federal and state law, but not including MH/SUD benefits. Any
condition defined by the plan or coverage as being or as not being a medical/surgical condition
must be defined to be consistent with generally recognized independent standards of current
medical practice (for example, the most current version of the International Classification of
Diseases (ICD) or state guidelines).

Mental health benefits means benefits with respect to items or services for mental health
conditions, as defined under the terms of the plan or health insurance coverage and in accordance
with applicable federal and state law. Any condition defined by the plan or coverage as being or
as not being a mental health condition must be defined to be consistent with generally recognized
independent standards of current medical practice (for example, the most current version of the
Diagnostic and Statistical Manual of Mental Disorders (DSM), the most current version of the
ICD, or state guidelines).

NOTE: If a plan defines a condition as a mental health condition, it must treat benefits for that
condition as mental health benefits for purposes of MHPAEA. For example, if a plan defines
autism spectrum disorder (ASD) as a mental health condition, it must treat benefits for ASD as
mental health benefits. Therefore, for example, any exclusion by the plan for experimental
treatment that applies to ASD should be evaluated for compliance as a nonquantitative treatment
limitation (NQTL) (and the processes, strategies, evidentiary standards, and other factors used by
the plan to determine whether a particular treatment for ASD is experimental, as written and in
operation, must be comparable to and no more stringently applied than those used for exclusions
of experimental treatments of medical/surgical conditions in the same classification). See FAQs
About Mental Health And Substance Use Disorder Parity Implementation And the 21st Century
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Cures Act Part 39, Q1, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-
activities/resource-center/faqs/aca-part-39-final.pdf. Additionally, if a plan defines ASD as a
mental health condition, any aggregate annual or lifetime dollar limit or any quantitative
treatment limitation (QTL) imposed on benefits for ASD (for example, an annual dollar cap on
benefits for Applied Behavioral Analysis (ABA) therapy for ASD of $35,000, or a 50-visit
annual limit for ABA therapy for ASD) should also be evaluated for compliance with MHPAEA.

Substance use disorder benefits means benefits with respect to items or services for substance
use disorders, as defined under the terms of the plan or health insurance coverage and in
accordance with applicable federal and state law. Any disorder defined by the plan as being or
as not being a substance use disorder must be defined to be consistent with generally recognized
independent standards of current medical practice (for example, the most current version of the
DSM, the most current version of the ICD, or state guidelines).

Treatment limitations include limits on benefits based on the frequency of treatment, number of
visits, days of coverage, days in a waiting period, or other similar limits on the scope or duration
of treatment. Treatment limitations include both QTLs, which are expressed numerically (such
as 50 outpatient visits per year), and NQTLs, which otherwise limit the scope or duration of
benefits for treatment under a plan or coverage. A permanent exclusion of all benefits for a
particular condition or disorder, however, is not a treatment limitation for purposes of this
definition.

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SECTION A. APPLICABILITY

Question 1.   Is the group health plan or group or individual health insurance coverage
              exempt from MHPAEA? If so, please indicate the reason (e.g. retiree-only
              plan, excepted benefits, small employer exception, increased cost exception,
              HIPAA opt-out).

       Comments:

If a group health plan or group or individual health insurance coverage provides either MH/SUD
benefits, in addition to medical/surgical benefits, the plan may be subject to the MHPAEA parity
requirements. However, retiree-only group health plans, self-insured non-federal
governmental plans that have elected to exempt the plan from MPHAEA, and group health plans
and group or individual health insurance coverage offering only excepted benefits, are generally
not subject to the MHPAEA parity requirements. (Note: if under an arrangement(s) to provide
medical care benefits by an employer or employee organization, any participant or beneficiary
can simultaneously receive coverage for medical/surgical benefits and MH/SUD benefits, the
MHPAEA parity requirements apply separately with respect to each combination of
medical/surgical benefits and MH/SUD benefits and all such combinations are considered to be a
single group health plan. See 26 CFR 54.9812-1(e), 29 CFR 2590.712(e), 45 CFR 146.136(e)).

Under ERISA, the MHPAEA requirements do not apply to small employers, defined as
employers who employed an average of at least 2 but not more than 50 employees on business
days during the preceding calendar year and who employ at least 1 employee on the first day of
the plan year. See 26 CFR 54.9812-1(f)(1), 29 CFR 2590.712(f)(1), 45 CFR 146.136(f)(1).
However, under HHS final rules governing the Affordable Care Act requirement to provide
EHBs, non-grandfathered health insurance coverage in the individual and small group markets
must provide all categories of EHBs, including MH/SUD benefits. The final EHB rules require
that such benefits be provided in compliance with the requirements of the MHPAEA rules. 45
CFR 156.115(a)(3); see also ACA Implementation FAQs Part XVII, Q6, available at
https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-
part-xvii.pdf. In practice, this means that employees in group health plans offered by small
employers who purchase non-grandfathered health insurance coverage in the small group market
(within the meaning of section 2791 of the PHS Act) that must provide EHBs have coverage that
is subject to the requirements of MHPAEA.

MHPAEA also contains an increased cost exemption available to group health plans and issuers
that meet the requirements for the exemption. The MHPAEA regulations establish standards and
procedures for claiming an increased cost exemption. See 26 CFR 54.9812-1(g), 29 CFR
2590.712(g), 45 CFR 146.136(g).

Sponsors of self-funded, non-federal governmental plans are permitted to elect to exempt those
plans from certain provisions of the PHS Act, including MHPAEA. An exemption election is
commonly called a “HIPAA opt-out.” The HIPAA opt-out election was authorized under section
2722(a)(2) of the PHS Act (42 USC § 300gg-21(a)(2)). See also 45 CFR 146.180. The

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procedures and requirements for self-funded, non-federal governmental plans to opt out may be
found at https://www.cms.gov/CCIIO/Resources/Forms-Reports-and-Other-Resources#Self-
Funded%20Non-Federal%20Governmental%20Plans.

Question 2.   If not exempt from MHPAEA, does the group health plan or group or
              individual health insurance coverage provide MH/SUD benefits in addition
              to providing medical/surgical benefits?

       Comments:

Unless the group health plan or group or individual health insurance coverage is exempt
from MHPAEA or does not provide MH/SUD benefits, continue to the following sections to
examine compliance with requirements under MHPAEA.

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SECTION B. COVERAGE IN ALL CLASSIFICATIONS

Question 3.    Does the group health plan or group or individual health insurance coverage
               provide MH/SUD benefits in every classification in which medical/surgical
               benefits are provided?

       Comments:

Under the MHPAEA regulations, if a plan or issuer provides mental health or substance use
disorder benefits in any classification described in the MHPAEA final regulation, mental health
or substance use disorder benefits must be provided in every classification in which
medical/surgical benefits are provided. See 26 CFR 54.9812-1(c)(2)(ii)(A), 29 CFR
2590.712(c)(2)(ii)(A), 45 CFR 146.136(c)(2)(ii)(A).

Under the MHPAEA regulations, the six classifications* of benefits are:

       1) inpatient, in-network;
       2) inpatient, out-of-network;
       3) outpatient, in-network;
       4) outpatient, out-of-network;
       5) emergency care; and
       6) prescription drugs.
   See 26 CFR 54.9812-1(c)(2)(ii), 29 CFR 2590.712(c)(2)(ii), 45 CFR 146.136(c)(2)(ii).

*See special rules related to the classifications discussed below.

        NOTE: If a plan or coverage generally excludes all benefits for a particular mental
       health condition or substance use disorder, but nevertheless includes prescription drugs
       for treatment of that condition or disorder on its formulary, the plan or coverage covers
       MH/SUD benefits in only one classification (prescription drugs). Therefore, the plan or
       coverage would generally be required to provide mental health or substance use disorder
       benefits with respect to that condition or disorder for each of the other five classifications
       for which the plan also provides medical/surgical benefits. However, if a prescription
       drug that may be used for a particular MH/SUD condition and may also be used for other
       unrelated conditions is included on a plan’s or coverage’s formulary, the drug’s inclusion
       on the formulary alone would not be considered to override the plan or coverage’s
       general exclusion for a particular mental health condition or substance use disorder unless
       the plan or coverage covers prescription drugs specifically to treat that condition.

ILLUSTRATION: A Plan provides for medically necessary medical/surgical benefits as well as
MH/SUD benefits. While the Plan covers medical/surgical benefits in all benefit classifications,
it does not cover outpatient services for MH/SUD benefits for either in-network or out-of-
network providers. In this example, since the Plan fails to provide MH/SUD benefits in
outpatient, in-network and outpatient, out-of-network classifications in which medical/surgical
benefits are provided, the Plan fails to meet MHPAEA’s parity requirements. The Plan could

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come into compliance by covering outpatient services for MH/SUD benefits both in- and out-of-
network in a manner comparable to covered medical/surgical outpatient in- and out-of-network
services.

Classifying benefits. In determining the classification in which a particular benefit belongs, a
group health plan or group or individual market health insurance issuer must apply the same
standards to medical/surgical benefits as to MH/SUD benefits. See 26 CFR 54.9812-
1(c)(2)(ii)(A), 29 CFR 2590.712(c)(2)(ii)(A), 45 CFR 146.136(c)(2)(ii)(A). This rule also applies
to intermediate services provided under the plan or coverage. Plans and issuers must assign
covered intermediate MH/SUD benefits (such as residential treatment, partial hospitalization,
and intensive outpatient treatment) to the existing six classifications in the same way that they
assign intermediate medical/surgical benefits to these classifications. For example, if a plan
classifies care in skilled nursing facilities and rehabilitation hospitals for medical/surgical
benefits as inpatient benefits, it must classify covered care in residential treatment facilities for
MH/SUD benefits as inpatient benefits. If a plan treats home health care as an outpatient benefit,
then any covered intensive outpatient MH/SUD services and partial hospitalization must be
considered outpatient benefits as well. A plan or issuer must also comply with MHPAEA’s
NQTL rules, discussed in Section F, in assigning any benefits to a particular classification. See
26 CFR 54.9812-1(c)(4), 29 CFR 2590.712(c)(4), 45 CFR 146.136(c)(4).

Medication Assisted Treatment (MAT) is subject to MHPAEA

Plans and issuers that offer MAT benefits to treat opioid use disorder are subject to MHPAEA
requirements, including the special rule for multi-tiered prescription drug benefits that applies to
the medication component of MAT. The behavioral health services components of MAT should
be treated as outpatient benefits and/or inpatient benefits as appropriate for purposes of
MHPAEA. Plans and issuers should ensure there are NO impermissible QTLs, such as visit
limits, or impermissible NQTLs, such as limits on treatment dosage and duration. For example,
a limitation providing that coverage of medication for the treatment of opioid use disorder is
contingent upon the availability of behavioral or psychosocial therapies or services or upon the
patient’s acceptance of such services would generally not be permissible unless a comparable
process was used to determine limitations for the coverage of medications for the treatment of
medical/surgical conditions.

ILLUSTRATION: An issuer did not cover methadone for opioid addiction, though it did cover
methadone for pain management. The issuer failed to demonstrate that the processes, strategies,
evidentiary standards, and other factors used to develop the methadone treatment exclusion for
opioid addiction are comparable to and applied no more stringently than those used for
medical/surgical conditions. The issuer re-evaluated the medical necessity of methadone-
maintenance treatment programs and developed medical-necessity criteria that mirrors federal
guidelines (including the Substance Abuse and Mental Health Services Administration treatment
improvement protocol 63 for medication for opioid use disorder) for opioid treatment programs
to replace the methadone-maintenance treatment exclusion.

ILLUSTRATION: A plan uses nationally recognized clinical standards to determine coverage
for prescription drugs to treat medical/surgical benefits based on the recommendations of a
Pharmacy and Therapeutics (P&T) committee. However, the plan deviates from such standards

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for buprenorphine/naloxone to treat opioid use disorder based on the P&T committee’s
recommendations. This deviation should be evaluated for compliance with MHPAEA’s NQTL
standard in practice, including the determination of (1) whether the P&T committee has
comparable expertise in MH/SUD conditions as it has in medical/surgical conditions, and (2)
whether the committee’s evaluation of the nationally-recognized clinical standards and decision
processes to deviate from those standards for MH/SUD conditions is comparable to and no more
stringent than the processes it follows for medical/surgical conditions.

Treatment for eating disorders is subject to MHPAEA

Eating disorders are mental health conditions, and treatment of an eating disorder is a “mental
health benefit” as that term is defined by MHPAEA. See ACA Implementation FAQs Part 38,
Q1, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-
center/faqs/aca-part-38.pdf. Section 13007 of the 21st Century Cures Act provides that if a plan
or an issuer provides coverage for eating disorders, including residential treatment, they must
provide these benefits in accordance with MHPAEA requirements. For example, an exclusion
under a plan of all inpatient, out-of-network treatment outside of a hospital setting for eating
disorders would generally not be permissible if the plan did not employ a comparable process to
determine if a similar limitation on treatment outside hospital settings for medical/surgical
benefits warranted. See FAQs About Mental Health And Substance Use Disorder Parity
Implementation And the 21st Century Cures Act Part 39, Q8, available at
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-
part-39-final.pdf.

                                       Compliance Tips

      If the plan or issuer does not contract with a network of providers, all benefits are
       out-of-network. If a plan or issuer that has no network imposes a financial
       requirement or treatment limitation on inpatient or outpatient benefits, the plan or
       issuer is imposing the requirement or limitation within classifications (inpatient, out-
       of-network or outpatient, out-of-network), and the rules for parity will be applied
       separately for the different classifications. See 26 CFR 54.9812-1(c)(2)(ii)(C), 29
       CFR 2590.712(c)(2)(ii)(C),                                        Example 1.
      If a plan or issuer covers the full range of medical/surgical benefits (in all
       classifications, both in-network and out-of-network), beware of exclusions on out-of-
       network MH/SUD benefits.
      Benefits for intermediate services (such as non-hospital inpatient and partial
       hospitalization) must be assigned to classifications using a comparable methodology
       across medical/surgical benefits and MH/SUD benefits.

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*NOTE: Special rules related to classifications

   1. Special rule for outpatient sub-classifications:

       •   For purposes of determining parity for outpatient benefits (in-network and out-of-
           network), a plan or issuer may divide its benefits furnished on an outpatient basis into
           two sub-classifications: (1) office visits; and (2) all other outpatient items and
           services, for purposes of applying the financial requirement and treatment limitation
           rules. 26 CFR 54.9812-1(c)(3)(iii), 29 CFR 2590.712(c)(3)(iii), 45 CFR
           146.136(c)(3)(iii).

           •   After the sub-classifications are established, the plan or issuer may not impose
               any financial requirement or QTL on MH/SUD benefits in any sub-classification
               (i.e., office visits or non-office visits) that is more restrictive than the predominant
               financial requirement or treatment limitation that applies to substantially all
               medical/surgical benefits in the sub-classification using the methodology set forth
               in the MHPAEA regulations. See 26 CFR 54.9812-1(c)(3)(i), 29 CFR
               2590.712(c)(3)(i), 45 CFR 146.136(c)(3)(i), 45 CFR 146.136(c)(3)(iii).

       •   Other than as explicitly permitted under the final rules, sub-classifications are not
           permitted when applying the financial requirement and treatment limitation rules
           under MHPAEA. Accordingly, separate sub-classifications for generalists and
           specialists are not permitted.

   2. Special rule for prescription drug benefits:

       •   There is a special rule for multi-tiered prescription drug benefits. Multi-tiered drug
           formularies involve different levels of drugs that are classified based primarily on
           cost, with the lowest-tier (Tier 1) drugs having the lowest cost-sharing. If a plan or
           issuer applies different levels of financial requirements to different tiers of
           prescription drug benefits, the plan complies with the mental health parity provisions
           if it establishes the different levels of financial requirements based on reasonable
           factors determined in accordance with the rules for NQTLs and without regard to
           whether a drug is generally prescribed for medical/surgical or MH/SUD benefits.
           Reasonable factors include cost, efficacy, generic versus brand name, and mail order
           versus pharmacy pick-up. See 26 CFR54.9812-1(c)(3)(iii), 29 CFR
           2590.712(c)(3)(iii), 45 CFR 146.136(c)(3)(iii).

   3. Special rule for multiple network tiers:

       •   There is a special rule for multiple network tiers. If a plan or issuer provides benefits
           through multiple tiers of in-network providers (such as in-network preferred and in-
           network participating providers), the plan or issuer may divide its benefits furnished
           on an in-network basis into sub-classifications that reflect network tiers, if the tiering
           is based on reasonable factors determined in accordance with the rules for NQTLs
           (such as quality, performance, and market standards) and without regard to whether a
           provider provides services with respect to medical/surgical benefits or MH/SUD

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benefits. After the tiers are established, the plan or issuer may not impose any
          financial requirement or treatment limitation on MH/SUD benefits in any tier that is
          more restrictive than the predominant financial requirement or treatment limitation
          that applies to substantially all medical/surgical benefits in the tier.

NOTE: As explained in the Introduction to this section, nothing in MHPAEA requires a non-
grandfathered group health plan or health insurance coverage that provides MH/SUD benefits
only to the extent required under PHS Act section 2713 to provide additional MH/SUD benefits
in any classification.

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SECTION C.       LIFETIME AND ANNUAL LIMITS

Question 4.    Does the group health plan or group or individual market health insurance
               issuer comply with the mental health parity requirements regarding lifetime
               and annual dollar limits on MH/SUD benefits?

       Comments:

A plan or issuer generally may not impose a lifetime dollar limit or an annual dollar limit on
MH/SUD benefits that is lower than the lifetime or annual dollar limit imposed on medical/
surgical benefits. See 26 CFR 9812-1(b), 29 CFR 2590.712(b), 45 CFR 146.136(b). (This
prohibition applies only to dollar limits on what the plan would pay, and not to dollar limits on
what an individual may be charged.) If a plan or issuer does not include an aggregate lifetime or
annual dollar limit on any medical/surgical benefits, or it includes one that applies to less than
one-third of all medical/surgical benefits, it may not impose an aggregate lifetime or annual dollar
limit on MH/SUD benefits. 26 CFR 54.9812-1(b)(2), 29 CFR 2590.712(b)(2), 45 CFR
146.136(b)(2).

ILLUSTRATION: Plan Z limits outpatient substance use disorder treatments to a maximum of
$1,000,000 per calendar year. With the exception of a $500,000 per year limit on chiropractic
services (which applies to less than one-third of all medical/surgical benefits), Plan Z does not
impose such annual dollar limits with respect to other outpatient medical/surgical benefits. In
this example, Plan Z is in violation of MHPAEA since the outpatient substance use disorder
dollar limit is not in parity with outpatient medical/surgical dollar limits.

                                         Compliance Tip

      There is a different rule for cumulative limits other than aggregate lifetime or annual
       dollar limits discussed later in this checklist at Question 6. A plan          may
       impose annual out-of-pocket dollar limits on participants and beneficiaries if done in
       accordance with the rule regarding cumulative limits.

NOTE: These provisions are affected by section 2711 of the PHS Act, as amended by the
Affordable Care Act. Specifically, PHS Act section 2711 generally prohibits lifetime and annual
dollar limits on EHB, which includes MH/SUD services. Accordingly, the parity requirements
regarding lifetime and annual dollar limits apply only to the provision of MH/SUD benefits that
are not EHBs.

Note also that, for plan years beginning in 2021, the annual limitation on an individual’s
maximum out-of-pocket (MOOP) costs in effect under the Affordable Care Act is $8,550 for
self-only coverage and $17,100 for coverage other than self-only coverage. The annual
limitation on out-of-pocket costs is increased annually by the premium adjustment percentage
described under Affordable Care Act section 1302(c)(4), and this updated amount is detailed
each year in regulations issues by the Department of Health and Human Services.

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SECTION D. FINANCIAL REQUIREMENTS AND QUANTITATIVE TREATMENT
LIMITATIONS

Question 5.     Does the group health plan or group or individual market health insurance
                issuer comply with the mental health parity requirements regarding financial
                requirements or QTLs on MH/SUD benefits?

        Comments:

   •    A plan or issuer may not impose a financial requirement or QTL applicable to MH/SUD
        benefits in any classification that is more restrictive than the predominant financial
        requirement or QTL of that type that is applied to substantially all medical/surgical
        benefits in the same classification. See 26 CFR 54.9812-1(c)(2), 29 CFR 2590.712(c)(2),
        45 CFR 146.136(c)(2).

        •   Types of financial requirements include deductibles, copayments, coinsurance, and
            out-of-pocket maximums. See 26 CFR 54.9812-1(c)(1)(ii), 29 CFR
            2590.712(c)(1)(ii), 45 CFR 146.136(c)(1)(ii).

        •   Types of QTLs include annual, episode, and lifetime day and visit limits, for example,
            number of treatments, visits, or days of coverage. See 26 CFR 54.9812-1(c)(1)(ii), 29
            CFR 2590.712(c)(1)(ii), 45 CFR 146.136(c)(1)(ii).

   •    The six classifications and the sub-classifications outlined in Section B, above, are the
        only classifications that may be used when determining the predominant financial
        requirements or QTLs that apply to substantially all medical/surgical benefits. See 26 CFR
        54.9812-1(c)(2)(ii), 29 CFR 2590.712(c)(2)(ii), 45 CFR 146.136(c)(2)(ii). A plan or issuer
        may not use a separate sub-classification under these classifications for generalists and
        specialists. See 26 CFR 54.9812-1(c)(3)(iii)(C), 29 CFR 2590.712(c)(3)(iii)(C), 45 CFR
        146.136(c)(3)(iii)(C).

                                        Compliance Tips

        Ensure that the plan or issuer does not impose financial requirements or QTLs that
         are applicable only to MH/SUD benefits.
        Identify all benefit packages and health insurance coverage to which MHPAEA
         applies.

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Detailed steps for applying this rule:

To determine compliance, each type of financial requirement or QTL within a coverage unit must
be analyzed separately within each classification. See 26 CFR 54.9812-1(c)(2)(i), 29 CFR
2590.712(c)(2)(i), 45 CFR 146.136(c)(2)(i). Coverage unit refers to the way in which a plan
groups individuals for purposes of determining benefits, or premiums or contributions, for
example, self-only, family, or employee plus spouse. See 26 CFR 54.9812-1(c)(1)(iv), 29 CFR
2590.712(c)(1)(iv), 45 CFR 146.136(c)(1)(iv). If a plan applies different levels of a financial
requirement or QTL to different coverage units in a classification of medical/surgical benefits
(for example, a $15 copayment for self-only and a $20 copayment for family coverage), the
predominant level is determined separately for each coverage unit. See 26 CFR 54.9812-
1(c)(3)(ii), 29 CFR 2590.712(c)(3)(ii), 45 CFR 146.136(c)(3)(ii).

   •   STEP ONE (“substantially all” test): First determine if a particular type of financial
       requirement or QTL applies to substantially all medical/surgical benefits in the relevant
       classification of benefits.

       •   Generally, a financial requirement or QTL is considered to apply to substantially all
           medical/surgical benefits if it applies to at least two-thirds of the medical/surgical
           benefits in the classification. See 26 CFR 9812-1(c)(3)(i)(A), 29 CFR
           2590.712(c)(3)(i)(A), 45 CFR 146.136(c)(3)(i)(A). This two-thirds calculation is
           generally based on the dollar amount of plan payments expected to be paid for the plan
           year within the classification. See 26 CFR 54.9812-1(c)(3)(i)(C), 29 CFR
           2590.712(c)(3)(i)(C), 45 CFR 146.136(c)(3)(i)(C). Any reasonable method can be
           used for this calculation. See 26 CFR 54.9812-1(c)(3)(i)(E), 29 CFR
           2590.712(c)(3)(i)(E), 45 CFR 146.136(c)(3)(i)(E).

   •   STEP TWO (“predominant” test): If the type of financial requirement or QTL applies to
       at least two-thirds of medical/surgical benefits in that classification, then determine the
       predominant level of that type of financial requirement or QTL that applies to the
       medical/surgical benefits that are subject to that type of financial requirement or QTL in
       that classification of benefits. (Note: If the type of financial requirement or QTL does not
       apply to at least two-thirds of medical/surgical benefits in that classification, it cannot
       apply to MH/SUD benefits in that classification.)

       •   Generally, the level of a financial requirement or QTL that is considered the
           predominant level of that type is the level that applies to more than one-half of the
           medical/surgical benefits in that classification subject to the financial requirement or
           QTL. See 26 CFR 54.9812-1(c)(3)(i)(B)(1), 29 CFR 2590.712(c)(3)(i)(B)(1), 45 CFR
           146.136(c)(3)(i)(B)(1). If there is no single level that applies to more than one-half
           of medical/surgical benefits in the classification subject to the financial requirement or
           quantitative treatment limitation, the plan can combine levels until the combination of
           levels applies to more than one-half of medical/surgical benefits subject to the
           financial requirement or QTL in the classification. In that case, the least restrictive
           level within the combination is considered the predominant level. See 26 CFR
           54.9812-1(c)(3)(i)(B)(2), 29 CFR 2590.712(c)(3)(i)(B)(2), 45 CFR
           146.136(c)(3)(i)(B)(2). For a simpler method of compliance, a plan may treat the

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least restrictive level of financial requirement or treatment limitation applied to
          medical/surgical benefits as predominant.

                            Compliance Tip: Book of Business

      When performing the “substantially all” and “predominant” tests for financial
       requirements and QTLs, basing the analysis on an issuer’s entire book of business is
       generally not a reasonable method if a plan or issuer has sufficient claims data
       regarding a specific plan for a reasonable projection of future claims costs for the
       substantially all and predominant analysis. However, there may be insufficient
       reliable claims data for a group health plan, in which case the analyses will require
       utilizing reasonable data from outside the group health plan. A plan or issuer must
       always use appropriate and sufficient data to perform the analysis in compliance with
       applicable Actuarial Standards of Practice. See ACA Implementation FAQs Part 34,
       Q3, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-
       activities/resource-center/faqs/aca-part-34.pdf.

ILLUSTRATION: Plan Z requires copayments for out-patient, in-network MH/SUD benefits.
In order to determine if the plan meets the parity requirements, take the following steps:

   1. STEP ONE: Determine if the particular type of financial requirement applies to
      substantially all (that is, 2/3 of) medical /surgical benefits in the relevant
      classification.

       Based on its prior claims experience, Plan Z expects $1 million in medical/surgical
       benefits to be paid in the outpatient, in-network classification and $700,000 of those
       benefits are expected to be subject to copayments. Because the amount of
       medical/surgical benefits expected to be subject to a copayment, which is $700,000, is at
       least 2/3 of the $1 million total medical/surgical benefits expected to be paid, a
       copayment can be applied to outpatient, in-network MH/SUD benefits.

   2. STEP TWO: Determine what level of the financial requirement is predominant (that
      is, the level that applies to more than half the medical/surgical benefits subject to the
      financial requirement in the relevant classification).

       In the outpatient, in-network classification where $1 million in medical/surgical benefits
       is expected to be paid, $700,000 of those benefits are expected to be subject to
       copayments. Out of the $700,000, Plan Z expects that 25 percent will be subject to a $15
       copayment and 75 percent will be subject to a $30 copayment. Since 75 percent is more
       than half, the $30 copayment is the predominant level.

       CONCLUSION: Plan Z cannot impose a copayment on MH/SUD benefits in this
       classification that is higher than $30.

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Warning Sign: If a plan or issuer applies a specialist copayment requirement for all MH/SUD
benefits within a classification but applies a specialist copayment only for certain
medical/surgical benefits within a classification, this may be indicative of noncompliance and
warrant further review. See “Compliance Tips” below for further guidance on specialist copay
requirements.

                                        Compliance Tips

      Ensure that when conducting the predominant/substantially all tests, the dollar
       amount of all plan payments for medical/surgical benefits expected to be paid in that
       classification for the relevant plan year are analyzed.
      A plan may be able to impose the specialist level of a financial requirement or QTL
       to MH/SUD benefits in a classification (or an office visit sub-classification) if it is the
       predominant level that applies to substantially all medical/surgical benefits within the
       office visit sub-classification. For example, if the specialist level of copay is the
       predominant level of copay that applies to substantially all medical/surgical benefits
       in the office visit, in-network sub-classification, the plan may apply the specialist
       level copay to MH/SUD benefits in the office visit, in-network sub-classification. See
       26 CFR 54.9812-1(c)(3), 29 CFR 2590.712(c)(3).

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SECTION E. CUMULATIVE FINANCIAL REQUIREMENTS AND TREATMENT
LIMITATIONS

Question 6.    Does the group health plan or group or individual market health insurance
               issuer comply with the mental health parity requirements regarding
               cumulative financial requirements or cumulative QTLs for MH/SUD
               benefits?

       Comments:

   •   A plan or issuer may not apply any cumulative financial requirement or cumulative QTL
       for MH/SUD benefits in a classification that accumulates separately from any cumulative
       financial requirement or QTL established for medical/surgical benefits in the same
       classification. See 26 CFR 54.9812-1(c)(3)(v), 29 CFR 2590.712(c)(3)(v), 45 CFR
       146.136(c)(3)(v). For example, a plan may not impose an annual $250 deductible on
       medical/surgical benefits in a classification and a separate $250 deductible on MH/SUD
       benefits in the same classification.

   •   Cumulative financial requirements are financial requirements that determine whether or
       to what extent benefits are provided based on accumulated amounts and include
       deductibles and out-of-pocket maximums (but do not include aggregate lifetime or annual
       dollar limits because these two terms are excluded from the meaning of financial
       requirements). See 26 CFR 54.9812-1(a), 29 CFR 2590.712(a), 45 CFR 146.136(a).

   •   Cumulative QTLs are treatment limitations that determine whether or to what extent
       benefits are provided based on accumulated amounts, such as annual or lifetime day or
       visit limits. See 26 CFR 54.9812-1(a), 29 CFR 2590.712(a), 45 CFR 146.136(a).

ILLUSTRATION: A plan offers three benefit options, all of which provide medical/surgical as
well as MH/SUD benefits. For all three benefit options, the plan provides for in-network
treatment limitations of 30 days per year with respect to inpatient mental health services, and in-
network treatment limitations of 20 visits per year with respect to outpatient mental health
services. No such limitations are imposed on outpatient or inpatient, in-network medical/surgical
benefits in any of the three benefit options.

In this example, the plan improperly imposes cumulative treatment limitations on the number of
visits for outpatient and inpatient, in-network and out-of-network mental health benefits in all
three benefit options. The plan could come into compliance by removing the day and visit limits
for mental health services.

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SECTION F. NONQUANTITATIVE TREATMENT LIMITATIONS

Question 7.    Does the group health plan or group or individual market health insurance
               issuer comply with the mental health parity requirements regarding NQTLs
               on MH/SUD benefits?

       Comments:

An NQTL is generally a limitation on the scope or duration of benefits for treatment. The
MHPAEA regulations prohibit a plan or an issuer from imposing NQTLs on MH/SUD benefits
in any classification unless, under the terms of the plan or coverage as written and in operation,
any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to
MH/SUD benefits in a classification are comparable to, and are applied no more stringently than,
those used in applying the limitation with respect to medical/surgical benefits in the same
classification. See 26 CFR 54.9812-1(c)(4)(i), 29 CFR 2590.712(c)(4)(i), 45 CFR
146.136(c)(4)(i).

The following is an illustrative, non-exhaustive list of NQTLs:

   •   Medical management standards limiting or excluding benefits based on medical necessity
       or medical appropriateness, or based on whether the treatment is experimental or
       investigative;
   •   Prior authorization or ongoing authorization requirements;
   •   Concurrent review standards;
   •   Formulary design for prescription drugs;
   •   For plans with multiple network tiers (such as preferred providers and participating
       providers), network tier design;
   •   Standards for provider admission to participate in a network, including reimbursement
       rates;
   •   Plan or issuer methods for determining usual, customary, and reasonable charges;
   •   Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is
       not effective (also known as “fail-first” policies or “ step therapy” protocols);
   •   Exclusions of specific treatments for certain conditions;
   •   Restrictions on applicable provider billing codes;
   •   Standards for providing access to out-of-network providers;
   •   Exclusions based on failure to complete a course of treatment; and
   •   Restrictions based on geographic location, facility type, provider specialty, and other
       criteria that limit the scope or duration of benefits for services provided under the plan or
       coverage.

See 26 CFR 54.9812-1(c)(4)(ii), 29 CFR 2590.712(c)(4)(ii), 45 CFR 146.136(c)(4)(ii). For
additional examples of plan provisions that may operate as NQTLs see Warning Signs, available
at https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/mental-health-parity/warning-
signs-plan-or-policy-nqtls-that-require-additional-analysis-to-determine-mhpaea-compliance.pdf.

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While NQTLs are generally defined as treatment limitations that are not expressed numerically,
the application of an NQTL in a numerical way does not modify its nonquantitative character.
For example, standards for provider admission to participate in a network are NQTLs because
such standards are treatment limitations that typically are not expressed numerically. See 29
CFR 2590.712 (c)(4)(ii), 45 CFR 146.136(c)(4)(ii). Nevertheless, these standards sometimes
rely on numerical standards, for example, numerical reimbursement rates. In this case, the
numerical expression of reimbursement rates does not modify the nonquantitative character of
the provider admission standards; accordingly, standards for provider admission, including
associated reimbursement rates to which a participating provider must agree, are to be evaluated
in accordance with the rules for NQTLs.

A group health plan or issuer may consider a wide array of factors in designing medical
management techniques for both MH/SUD benefits and medical/surgical benefits, such as cost of
treatment; high cost growth; variability in cost and quality; elasticity of demand; provider
discretion in determining diagnosis, or type or length of treatment; clinical efficacy of any
proposed treatment or service; licensing and accreditation of providers; and claim types with a
high percentage of fraud. Based on application of these or other factors in a comparable fashion,
an NQTL, such as prior authorization, may be required for some (but not all) MH/SUD benefits,
as well as for some (but not all) medical/ surgical benefits. See 26 CFR 54.9812-1(c)(4), 29 CFR
2590.712(c)(4), 45 CFR 146.136(c)(4), Example 8.

       NOTE – To comply with MHPAEA, a plan or issuer must be able to demonstrate that it
       follows a comparable process in determining reimbursement rates for in-network and out-
       of-network providers for both medical/surgical and MH/SUD benefits. For example, if
       reimbursement rates for medical/surgical benefits are determined by reference to the
       Medicare Physician Fee Schedule, reimbursement rates for MH/SUD benefits must also
       be determined comparably and applied no more stringently by reference to the Medicare
       Physician Fee Schedule. Any variance in rates applied by the plan or issuer to account
       for factors such as the nature of the service, provider type, market dynamics, or market
       need or availability (demand) must be comparable and applied no more stringently to
       MH/SUD benefits than medical/surgical benefits.

       NOTE - Plans and issuers may attempt to address shortages in medical/surgical specialist
       providers and ensure reasonable patient wait times for appointments by adjusting
       provider admission standards, through increasing reimbursement rates, and by developing
       a process for accelerating enrollment in their networks to improve network adequacy. To
       comply with MHPAEA, plans and issuers must take measures that are comparable to and
       no more stringent than those applied to medical/surgical providers to help ensure an
       adequate network of MH/SUD providers, even if ultimately there are disparate numbers
       of MH/SUD and medical/surgical providers in the plan’s network. The Departments note
       that substantially disparate results—for example, a network that includes far fewer
       MH/SUD providers than medical/surgical providers—are a red flag that a plan or issuer
       may be imposing an impermissible NQTL. See FAQs Part 39, Q6 and Q7, available at
       https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-
       center/faqs/aca-part-39-final.pdf.

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Warning Signs: The following plan provisions related to provider reimbursements may be
indicative of noncompliance and warrant further review:

   1. Inequitable reimbursement rates established via a comparison to Medicare: A plan or
      issuer generally pays at or near Medicare reimbursement rates for MH/SUD benefits,
      while paying much more than Medicare reimbursement rates for medical/surgical
      benefits. For assistance comparing a plan or coverage’s reimbursement schedule to
      Medicare, see the PROVIDER REIMBURSEMENT RATE WARNING SIGNS in
      Appendix II.

   2. Lesser reimbursement for MH/SUD physicians for the same evaluation and management
      (E&M) codes: A plan or issuer reimburses psychiatrists, on average, less than
      medical/surgical physicians for the same E&M codes.

   3. Consideration of different sets of factors to establish reimbursement rates: A plan or
      issuer generally considers market dynamics, supply and demand, and geographic location
      to set reimbursement rates for medical/surgical benefits, but considers only quality
      measures and treatment outcomes in setting reimbursement rates for MH/SUD benefits.

In order to determine compliance with MHPAEA, the following analysis should be applied
to each NQTL identified under the plan or coverage:

   Step One:

   •   Identify the NQTL.

       Comments:

       Identify in the plan documents all the services (both MH/SUD and medical/surgical) to
       which the NQTL applies in each classification.

       NOTE: NQTLs may also be included in other documents, such as internal guidelines or
       provider contracts.

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Compliance Tips

          Ask for information about what medical/surgical benefits are also subject to these
           requirements or restrictions.
          If a benefit includes multiple components (e.g., outpatient and prescription drug
           classifications), and each component is subject to a different type of NQTL (e.g., prior
           authorization and limits on treatment dosage or duration), each NQTL must be analyzed
           separately.
          Find out how these requirements are implemented, who makes the decisions, and what the
           decision-maker’s qualifications are.

Determine which benefits are treated as medical/surgical and which are treated as MH/SUD, and
analyze the NQTLs under each benefit classification. Plans and issuers should clearly define
which benefits are treated as medical/surgical and which benefits are treated as MH/SUD under
the plan. Benefits (such as inpatient treatment at a skilled nursing facility or other non-hospital
facility and partial hospitalization) must be assigned to classifications using a comparable
methodology across medical/surgical benefits and MH/SUD benefits.

                                            Compliance Tip

          Any separate NQTL that applies to only the MH/SUD benefits within any particular
           classification does not comply with MHPAEA.

           NOTE: If a plan classifies covered intermediate levels of care, such as skilled nursing
           care and residential treatment, as inpatient benefits, and covers room and board for all
           inpatient medical/surgical care, including skilled nursing facilities and other intermediate
           levels of care, but imposes a restriction on room and board for MH/SUD residential care,
           the plan imposes an impermissible restriction only on MH/SUD benefits and therefore
           violates MHPAEA. 1 The plan could come into compliance by covering room and board
                                  0F

           for intermediate levels of care for MH/SUD benefits comparably with medical/surgical
           inpatient treatment.

1
    See 29 CFR 2590.712(c)(iii) Ex. 9.

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Step Two:

•    Identify the factors considered in the design of the NQTL.

     Comments:

     Examples of factors include but are not limited to the following:

         o   Excessive utilization;
         o   Recent medical cost escalation;
         o   Provider discretion in determining diagnosis;
         o   Lack of clinical efficiency of treatment or service;
         o   High variability in cost per episode of care;
         o   High levels of variation in length of stay;
         o   Lack of adherence to quality standards;
         o   Claim types with high percentage of fraud; and
         o   Current and projected demand for services.

                                      Compliance Tips

     If only certain benefits are subject to an NQTL, such as meeting a fail-first protocol or
      requiring preauthorization, plans and issuers should have information available to
      substantiate how the applicable factors were used to apply the specific NQTL to
      medical/surgical and MH/SUD benefits.
     Determine whether any factors were given more weight than others and the reason(s) for
      doing so, including evaluating the specific data used in the determination (if any).

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Step Three:

•   Identify the sources (including any processes, strategies, or evidentiary standards) used to
    define the factors identified above to design the NQTL.

    Comments:

    Examples of sources of factors include, but are not limited to, the following:

       o   Internal claims analysis;
       o   Medical expert reviews;
       o   State and federal requirements;
       o   National accreditation standards;
       o   Internal market and competitive analysis;
       o   Medicare physician fee schedules; and
       o   Evidentiary standards, including any published standards as well as internal plan
           or issuer standards, relied upon to define the factors triggering the application of
           an NQTL to benefits.

    If these factors are utilized, they must be applied comparably to MH/SUD and
    medical/surgical benefits.

       NOTE: Plans and issuers have flexibility in determining the sources of factors to
       apply to NQTLs (including whether or not to employ a particular source or
       evidentiary standard), as long as they are applied comparably and no more stringently
       to MH/SUD benefits than to medical/surgical benefits. For example, a plan utilizes a
       panel of medical experts, with equivalent expertise in both medical/surgical and
       MH/SUD benefits, to assess whether preauthorization (an NQTL) is appropriate to
       apply to certain services, based on the factors of cost and safety. The panel
       recommends that the plan require preauthorization for electroconvulsive therapy
       (ECT), because ECT is high cost and its use presents legitimate safety concerns. The
       plan does not require documentation or studies to support these concerns and instead
       relies on established medical best practices. As long as the plan similarly relies on
       established medical best practices to define high cost, identify legitimate safety
       concerns, and impose preauthorization requirements on medical/surgical benefits in
       the same classification, then the NQTL is applied comparably and no more
       stringently to MH/SUD benefits than to medical/surgical benefits.

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Compliance Tips

 Evidentiary standards and processes that a plan or issuer relies upon may include any
  evidence that a plan or issuer considers in developing its medical management
  techniques, including recognized medical literature and professional standards and
  protocols (including comparative effectiveness studies and clinical trials), and
  published research studies.
 If there is any variation in the application of a guideline or standard being relied upon
  by the plan or issuer, the plan or issuer should explain the process and factors relied
  upon for establishing that variation.
 If the plan or issuer relies on any experts, the plan or issuer should assess the experts’
  qualifications and the extent to which the expert evaluations in setting
  recommendations are ultimately relied upon regarding both MH/SUD and
  medical/surgical benefits.

 NOTE: When identifying the sources of the factors considered in designing the NQTL,
 also identify any threshold at which each factor will implicate the NQTL. For example,
 if high cost is identified as a factor used in designing a prior authorization requirement,
 the threshold dollar amount at which prior authorization will be required for any service
 should also be identified. You may also wish to consider the following:

     •   What data, if any, are used to determine if the benefit is “high cost”?
     •   How, if at all, is the amount that is to be considered “high cost” or the calculation
         for determining that amount different for MH/SUD benefits as compared to
         medical/surgical benefits, and how is the difference justified?

 Examples of how factors identified based on evidentiary standards may be defined to set
 applicable thresholds for NQTLs include, but are not limited to, the following:

     o Excessive utilization as a factor to design the NQTL when utilization is two
       standard deviations above average utilization per episode of care.
     o Recent medical cost escalation may be considered as a factor based on internal
       claims data showing that medical cost for certain services increased 10 percent or
       more per year for two years.
     o Lack of adherence to quality standards may be considered as a factor when
       deviation from generally accepted national quality standards for a specific disease
       category occurs more than 30 percent of the time based on clinical chart reviews.
     o High level of variation in length of stay may be considered as a factor when
       claims data shows that 25 percent of patients stayed longer than the median length
       of stay for acute hospital episodes of care.
     o High variability in cost per episode may be considered as a factor when episodes
       of outpatient care are two standard deviations higher in total cost than the average
       cost per episode 20 percent of the time in a 12-month period.
     o Lack of clinical efficacy may be considered as a factor when more than 50 percent

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